Resume executions or keep the ban?

Court case will push death penalty issue to Perdue, legislators

Now that the legal battle over a doctor's role in death row executions is nearing a conclusion, the issue of capital punishment in North Carolina is about to land in the laps of the 2009 General Assembly and Governor-elect Bev Perdue.

The state Supreme Court heard arguments Nov. 18 in a case between the N.C. Medical Board and the N.C. Department of Correction over the meaning of a nearly century-old law requiring that a doctor be "present" during an execution. The fight between the two agencies, which began more than two years ago, has resulted in a virtual moratorium on executions; the last one took place in August 2006. A decision in the case is expected within a few months, but however it comes out, lawmakers and Perdue will decide the fates of 162 men and women on death row.

A Supreme Court ruling could open the execution floodgates if Perdue and the legislature want to make up for lost time. Conversely, the new governor—unlike outgoing Gov. Mike Easley—may choose to get behind the push for a formal moratorium on executions, as well as a legislative study of whether capital punishment can be handled fairly in this state.

In response to a question from the Indy, Governor-elect Perdue said in a statement that she supports the current moratorium while the court considers the case. "Once a decision is reached," she said, "I will direct the Department of Correction to proceed under an appropriate set of rules that abides by the Court's judgment."

Meanwhile, prisoners remain on death row in Raleigh's Central Prison—a majority of whom have been there more than 10 years. The oldest of the cases dates to 1985, when Wayne Laws was convicted of murder in Davidson County. Two women, Patricia Jennings and Blanche Moore, arrived on death row in 1990. They were followed by 25 other convicts who've been on death row 15 years or more; another 74 have been there between 10 and 15 years.

How many of these cases are at the execution stage, requiring only that the Department of Correction set a date, could not be determined. The Center for Death Penalty Litigation in Durham, which assists capital defendants and tracks their cases, says further appeals are possible for many of them, based on issues of possible mental retardation, racial bias or new evidence. On Nov. 24, a judge ordered Clinton Smith off death row after finding that he is retarded and illiterate and is incapable of understanding his actions. His lawyers maintain he didn't commit the murder he was convicted of 10 years ago in Halifax County.

Gerda Stein, the center's public information coordinator, said the number of executions in the coming year could be unprecedented for North Carolina. The state has never conducted more than five executions in one year. Between 1984 and 2006, the state put to death 43 defendants, an average of two per year.

Stein said that North Carolinians are "much more ambivalent" about capital punishment now than they were even a decade ago, when juries were handing death sentences to as many as 36 defendants in a single year, and averaging 25 annually. In 2008, she said, only one defendant in North Carolina has been sentenced to death. There were just three in 2007.

Various reforms have made a difference, Stein noted. They include better-trained and state-funded defense lawyers; new discovery rules guaranteeing the defense access to all evidence gathered by the prosecution; the 2001 state law barring the execution of anyone with an I.Q. below 70; and the fact that juries now have the alternative of sentencing first-degree murder convicts to life imprisonment without possibility of parole.

"Many on death row, if they were being sentenced now, would receive life sentences," Stein said. She cited Hampton Dellinger, former legal counsel to Easley, for observing that North Carolina now has "two death rows" with different rules for each.

Sorting out whether the state still wants to execute people convicted under the old rules, which were mistake-prone, oblivious to questions of mental illness and retardation, and subject to racial bias, is a key argument for continuing the moratorium and initiating a legislative study, Stein added.

In 2003, the state Senate voted to initiate such a study, while the state observed a two-year moratorium. The bill never passed the House, however.

By the 2007 legislative session, the dispute over whether a doctor should take some role in executions beyond the legally required "presence" had snarled the process, creating what many termed a de facto moratorium that the General Assembly's Democratic leadership showed no interest in disturbing.

For nearly a century, since the state took control of executions away from the counties in 1909 and substituted the electric chair in Raleigh for courthouse hangings, the law has required that a physician be present at Central Prison. The question argued in front of the Supreme Court was whether the purpose of the law was merely to have a doctor on hand to certify death, or whether it should also mean that doctors—now that executions are by lethal injection—were available for some greater role.

The Medical Board, a state-created agency with the power to govern doctors' practices and discipline them for violating medical ethics, argues that physicians cannot ethically play any role in executions and were never expected to prior to the Easley administration. The board has ruled that any doctor doing so would be subject to punishment.

Arguing for the Department of Correction, Assistant Attorney General Joseph Finarelli maintained that from the beginning, a doctor's presence was required for humane reasons, not just to sign a death certificate. Since the advent of lethal injections, the doctor's role has expanded—under rules set out by DOC and approved by the Council of State—to include monitoring the prisoner's condition during the execution.

The prisoner is supposed to remain unconscious after the first, anesthetic drug is injected. A second, paralyzing drug is then administered, followed by a third, lethal drug. If not unconscious, the prisoner might experience excruciating pain from the third drug (potassium chloride) but be unable to move or react because of the second one.

The DOC wrote the expanded doctor's role in the execution process to satisfy a federal district court judge hearing an appeal about the possibility of pain to the prisoner as a violation of the Eighth Amendment's proscription against cruel and unusual punishment.

Since that occurred, however, the U.S. Supreme Court, in the case of Baze v. Rees, in April upheld Kentucky's lethal injection procedure, which involves the same three drugs as North Carolina's, though in slightly different doses, and no doctor.

Thus, even if the N.C. Supreme Court sides with the Medical Board, the DOC could rewrite its execution rules so that a doctor is present but a non-participant, as the board's rules allow.

The court could decide, however, to side with neither the department nor the board. Associate Justice Bob Edmunds observed, during oral arguments, that since the two are operating under different, apparently conflicting state laws, the issue may be "non-justiciable"—meaning only the General Assembly, by writing a new law, could sort it out.

Later, Associate Justice Patricia Timmons-Goodson also suggested that the court resist the temptation to do the legislature's job.

"Why shouldn't we just send this right on over there where it belongs?" she asked Finarelli. If it does, the job of defining the doctor's role, if any, would fall to the legislature, which ignored several bills on that subject in the 2007 session and may not be eager to take it on.

Regardless of the U.S. Supreme Court's decision, the General Assembly may be reluctant to enact an execution process that doesn't at least have the veneer of painlessness that a doctor's presence provides, defense lawyers believe.

They may be confronted with the fact that, as Hardy Lewis, a Raleigh lawyer who represents post-conviction capital defendants, says: "The safest way to ensure a painless death is probably with a guillotine. But I don't think the public is ready for that."